Learning Interactive Unit:
Nationwide Programmatic Agreement
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I. Applicability & Scope
II. Definitions
III. Exclusions
IV. Tribal Participation
V. Consulting Parties
VI. Identification of Effects
VII. Procedures
VIII. Emergency Situations
IX. Post Review Discoveries
X. Construction Prior to...
XI. Other Provisions
Forms & Resources
Related Regulations
Identification of Effects
Overview of Applicant's responsibilities
A. In preparing the Submission Packet for the SHPO/THPO and consulting parties pursuant to Section VII of the Nationwide Agreement and Attachments 3 and 4, the Applicant shall: (1) define the area of potential effects (APE); (2) identify Historic Properties within the APE; (3) evaluate the historic significance of identified properties as appropriate; and (4) assess the effects of the Undertaking on Historic Properties. The standards and procedures in the following sections shall be applied by the Applicant in preparing the Submission Packet, by the SHPO/THPO in reviewing the Submission Packet, and where appropriate, by the Commission in making findings.
Exclusion of Specific Geographic Areas from Review
B. Exclusion of Specific Geographic Areas from Review. The SHPO/THPO, consistent with relevant State or tribal procedures, may specify geographic areas in which no review is required for direct effects on archeological resources or no review is required for visual effects.
Area of Potential Effects
C. Area of Potential Effects. (1) The term "Area of Potential Effects" is defined in Section II.A.3 of the Nationwide Agreement. For purposes of the Nationwide Agreement, the APE for direct effects and the APE for visual effects are further defined and are to be established as described below. (2) The APE for direct effects is limited to the area of potential ground disturbance and any property, or any portion thereof, that will be physically altered or destroyed by the Undertaking. (3) The APE for visual effects is the geographic area in which the Undertaking has the potential to introduce visual elements that diminish or alter the setting, including the landscape, where the setting is a character-defining feature of a Historic Property that makes it eligible for listing on the National Register. (4) Unless otherwise established through consultation with the SHPO/THPO, the presumed APE for visual effects for construction of new Facilities is the area from which the Tower will be visible: a. Within a half mile from the tower site if the proposed Tower is 200 feet or less in overall height; b. Within ¾ of a mile from the tower site if the proposed Tower is more than 200 but no more than 400 feet in overall height; or c. Within 1 ½ miles from the proposed tower site if the proposed Tower is more than 400 feet in overall height. (5) In the event the Applicant determines, or the SHPO/THPO recommends, that an alternative APE for visual effects is necessary, the Applicant and the SHPO/THPO may mutually agree to an alternative APE. (6) If the Applicant and the SHPO/THPO, after using good faith efforts, cannot reach an agreement on the use of an alternative APE, either the Applicant or the SHPO/THPO may submit the issue to the Commission for resolution. The Commission shall make its determination concerning an alternative APE within a reasonable time.
Identification and Evaluation of Historic Properties
D. Identification and Evaluation of Historic Properties. (1) Identification and Evaluation of Historic Properties Within the APE for Visual Effects. a. Except to identify Historic Properties of religious and cultural significance to Indian tribes and NHOs, Applicants shall identify Historic Properties within the APE for visual effects by reviewing the following records. Applicants are required to review such records only to the extent they are available at the offices of the SHPO/THPO or can be found in publicly available sources identified by the SHPO/THPO. With respect to these properties, Applicants are not required to undertake a Field Survey or other measures other than reviewing these records in order to identify Historic Properties: (i) Properties listed in the National Register; (ii) Properties formally determined eligible for listing by the Keeper of the National Register; (iii) Properties that the SHPO/THPO certifies are in the process of being nominated to the National Register; (iv) Properties previously determined eligible as part of a consensus determination of eligibility between the SHPO/THPO and a Federal Agency or local government representing the Department of Housing and Urban Development (HUD); and (v) Properties listed in the SHPO/THPO Inventory that the SHPO/THPO has previously evaluated and found to meet the National Register criteria, and that are identified accordingly in the SHPO/THPO Inventory. b. At an early stage in the planning process and in accordance with Section IV of the Nationwide Agreement, the Commission or the Applicant, as appropriate, shall gather information from Indian tribes or NHOs identified pursuant to Section IV.B to assist in identifying Historic Properties of religious and cultural significance to them within the APE for visual effects. Such information gathering may include a Field Survey where appropriate. c. Based on the sources listed above and public comment received pursuant to Section V of the Nationwide Agreement, the Applicant shall include in its Submission Packet a list of properties it has identified as apparent Historic Properties within the APE for visual effects. (i) During the review period described in Section VII.A, the SHPO/THPO may identify additional properties included in the SHPO/THPO Inventory and located within the APE that the SHPO/THPO considers eligible for listing on the National Register, and notify the Applicant pursuant to Section VII.A.4. (ii) The SHPO/THPO may also advise the Applicant that previously identified properties on the list no longer qualify for inclusion in the National Register. d. Applicants are encouraged at their discretion to use the services of professionals who meet the Secretary of the Interior's Professional Qualification Standards when identifying Historic Properties within the APE for visual effects. e. Applicants are not required to evaluate the historic significance of properties identified pursuant to Section VI.D.1.a., but may rely on the previous evaluation of these properties. Applicants may, at their discretion, evaluate whether such properties are no longer eligible for inclusion in the National Register and recommend to the SHPO/THPO their removal from consideration. Any such evaluation shall be performed by a professional who meets the Secretary of the Interior's Professional Qualification Standards. (2) Identification and Evaluation of Historic Properties Within the APE for Direct Effects. a. In addition to the properties identified pursuant to Section VI.D.1, Applicants shall make a reasonable good faith effort to identify other above ground and archeological Historic Properties, including buildings, structures, and historic districts, that lie within the APE for direct effects. Such reasonable and good faith efforts may include a Field Survey where appropriate. b. Identification and evaluation of Historic Properties within the APE for direct effects, including any finding that an archeological Field Survey is not required, shall be undertaken by a professional who meets the Secretary of the Interior's Professional Qualification Standards. Identification and evaluation relating to archeological resources shall be performed by a professional who meets the Secretary of the Interior's Professional Qualification Standards in archeology. c. Except as provided below, the Applicant need not undertake a Field Survey for archeological resources where: (i) the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least 2 feet as documented in the Applicant's siting analysis; or (ii) geomorphological evidence indicates that cultural resource-bearing soils do not occur within the project area or may occur but at depths that exceed 2 feet below the proposed construction depth. d. At an early stage in the planning process and in accordance with Section IV of the Nationwide Agreement, the Commission or the Applicant, as appropriate, shall gather information from Indian tribes or NHOs identified pursuant to Section IV.B to assist in identifying archeological Historic Properties of religious and cultural significance to them within the APE for direct effects. If an Indian tribe or NHO provides evidence that supports a high probability of the presence of intact archeological Historic Properties within the APE for direct effects, the Applicant shall conduct an archeological Field Survey notwithstanding Section VI.D.2.c. e. Where the Applicant pursuant to Sections VI.D.2.c and VI.D.2.d finds that no archeological Field Survey is necessary, it shall include in its Submission Packet a report substantiating this finding. During the review period described in Section VII.A, the SHPO/THPO may, based on evidence that supports a high probability of the presence of intact archeological Historic Properties within the APE for direct effects, notify the Applicant that the Submission Packet is inadequate without an archeological Field Survey pursuant to Section VII.A.4. f. The Applicant shall conduct an archeological Field Survey within the APE for direct effects if neither of the conditions in Section VI.D.2.c applies, or if required pursuant to Section VI.D.2.d or e. The Field Survey shall be conducted in consultation with the SHPO/THPO and consulting Indian tribes or NHOs. g. The Applicant, in consultation with the SHPO/THPO and appropriate Indian tribes or NHOs, shall apply the National Register criteria (36 C.F.R. Part 63) to properties identified within the APE for direct effects that have not previously been evaluated for National Register eligibility, with the exception of those identified pursuant to Section VI.D.1.a.
Section VII.A
A. Use of the Submission Packet. (1) For each Undertaking within the scope of the Nationwide Agreement, the Applicant shall initially determine whether there are no Historic Properties affected, no adverse effect on Historic Properties, or an adverse effect on Historic Properties. The Applicant shall prepare a Submission Packet and submit it to the SHPO/THPO and to all consulting parties, including any Indian tribe or NHO that is participating as a consulting party. (2) The SHPO/THPO shall have 30 days from receipt of the requisite documentation to review the Submission Packet. (3) If the SHPO/THPO receives a comment or objection, in accordance with Section V.E, more than 25 but less than 31 days following its receipt of the initial submission, the SHPO/THPO shall have five calendar days to consider such comment or objection before the Section 106 process is complete or the matter may be submitted to the Commission. (4) If the SHPO/THPO determines the Applicant's Submission Packet is inadequate, or if the SHPO/THPO identifies additional Historic Properties within the APE, the SHPO/THPO will immediately notify the Applicant and describe any deficiencies. The SHPO/THPO may close its file without prejudice if the Applicant does not resubmit an amended Submission Packet within 60 days following the Applicant's receipt of the returned Submission Packet. Resubmission of the Submission Packet to the SHPO/THPO commences a new 30 day period for review.
VI.D.1
D. Identification and Evaluation of Historic Properties. (1) Identification and Evaluation of Historic Properties Within the APE for Visual Effects. a. Except to identify Historic Properties of religious and cultural significance to Indian tribes and NHOs, Applicants shall identify Historic Properties within the APE for visual effects by reviewing the following records. Applicants are required to review such records only to the extent they are available at the offices of the SHPO/THPO or can be found in publicly available sources identified by the SHPO/THPO. With respect to these properties, Applicants are not required to undertake a Field Survey or other measures other than reviewing these records in order to identify Historic Properties: (i) Properties listed in the National Register; (ii) Properties formally determined eligible for listing by the Keeper of the National Register; (iii) Properties that the SHPO/THPO certifies are in the process of being nominated to the National Register; (iv) Properties previously determined eligible as part of a consensus determination of eligibility between the SHPO/THPO and a Federal Agency or local government representing the Department of Housing and Urban Development (HUD); and (v) Properties listed in the SHPO/THPO Inventory that the SHPO/THPO has previously evaluated and found to meet the National Register criteria, and that are identified accordingly in the SHPO/THPO Inventory. b. At an early stage in the planning process and in accordance with Section IV of the Nationwide Agreement, the Commission or the Applicant, as appropriate, shall gather information from Indian tribes or NHOs identified pursuant to Section IV.B to assist in identifying Historic Properties of religious and cultural significance to them within the APE for visual effects. Such information gathering may include a Field Survey where appropriate. c. Based on the sources listed above and public comment received pursuant to Section V of the Nationwide Agreement, the Applicant shall include in its Submission Packet a list of properties it has identified as apparent Historic Properties within the APE for visual effects. (i) During the review period described in Section VII.A, the SHPO/THPO may identify additional properties included in the SHPO/THPO Inventory and located within the APE that the SHPO/THPO considers eligible for listing on the National Register, and notify the Applicant pursuant to Section VII.A.4. (ii) The SHPO/THPO may also advise the Applicant that previously identified properties on the list no longer qualify for inclusion in the National Register. d. Applicants are encouraged at their discretion to use the services of professionals who meet the Secretary of the Interior's Professional Qualification Standards when identifying Historic Properties within the APE for visual effects. e. Applicants are not required to evaluate the historic significance of properties identified pursuant to Section VI.D.1.a., but may rely on the previous evaluation of these properties. Applicants may, at their discretion, evaluate whether such properties are no longer eligible for inclusion in the National Register and recommend to the SHPO/THPO their removal from consideration. Any such evaluation shall be performed by a professional who meets the Secretary of the Interior's Professional Qualification Standards.
VI.D.2.c
c. Except as provided below, the Applicant need not undertake a Field Survey for archeological resources where: (i) the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least 2 feet as documented in the Applicant's siting analysis; or (ii) geomorphological evidence indicates that cultural resource-bearing soils do not occur within the project area or may occur but at depths that exceed 2 feet below the proposed construction depth.
VI.D.2.d
d. At an early stage in the planning process and in accordance with Section IV of the Nationwide Agreement, the Commission or the Applicant, as appropriate, shall gather information from Indian tribes or NHOs identified pursuant to Section IV.B to assist in identifying archeological Historic Properties of religious and cultural significance to them within the APE for direct effects. If an Indian tribe or NHO provides evidence that supports a high probability of the presence of intact archeological Historic Properties within the APE for direct effects, the Applicant shall conduct an archeological Field Survey notwithstanding Section VI.D.2.c.
VII.A.4
4 If the SHPO/THPO determines the Applicant's Submission Packet is inadequate, or if the SHPO/THPO identifies additional Historic Properties within the APE, the SHPO/THPO will immediately notify the Applicant and describe any deficiencies. The SHPO/THPO may close its file without prejudice if the Applicant does not resubmit an amended Submission Packet within 60 days following the Applicant's receipt of the returned Submission Packet. Resubmission of the Submission Packet to the SHPO/THPO commences a new 30 day period for review.
VI.D.2.d or e
d. At an early stage in the planning process and in accordance with Section IV of the Nationwide Agreement, the Commission or the Applicant, as appropriate, shall gather information from Indian tribes or NHOs identified pursuant to Section IV.B to assist in identifying archeological Historic Properties of religious and cultural significance to them within the APE for direct effects. If an Indian tribe or NHO provides evidence that supports a high probability of the presence of intact archeological Historic Properties within the APE for direct effects, the Applicant shall conduct an archeological Field Survey notwithstanding Section VI.D.2.c. e. Where the Applicant pursuant to Sections VI.D.2.c and VI.D.2.d finds that no archeological Field Survey is necessary, it shall include in its Submission Packet a report substantiating this finding. During the review period described in Section VII.A, the SHPO/THPO may, based on evidence that supports a high probability of the presence of intact archeological Historic Properties within the APE for direct effects, notify the Applicant that the Submission Packet is inadequate without an archeological Field Survey pursuant to Section VII.A.4.
36 C.F.R. Part 63
[Code of Federal Regulations] [Title 36, Volume 1] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 36CFR60.4] [Page 295-296] TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY CHAPTER I--NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR PART 60--NATIONAL REGISTER OF HISTORIC PLACES--Table of Contents Sec. 60.4 Criteria for evaluation. The criteria applied to evaluate properties (other than areas of the National Park System and National Historic Landmarks) for the National Register are listed below. These criteria are worded in a manner to provide for a wide diversity of resources. The following criteria shall be used in evaluating properties for nomination to the National Register, by NPS in reviewing nominations, and for evaluating National Register eligibility of properties. Guidance in applying the criteria is further discussed in the ``How To'' publications, Standards & Guidelines sheets and Keeper's opinions of the National Register. Such materials are available upon request. National Register criteria for evaluation. The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association and (a) that are associated with events that have made a significant contribution to the broad patterns of our history; or (b) that are associated with the lives of persons significant in our past; or (c) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or (d) that have yielded, or may be likely to yield, information important in prehistory or history. Criteria considerations. Ordinarily cemeteries, birthplaces, or graves of historical figures, properties owned by religious institutions or used for religious purposes, structures that have been moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature, and properties that have achieved significance within the past 50 years shall not be considered eligible for the National Register. However, such properties will qualify if they are integral parts of districts that do meet the criteria of if they fall within the following categories: (a) A religious property deriving primary significance from architectural or artistic distinction or historical importance; or (b) A building or structure removed from its original location but which is significant primarily for architectural value, or which the surviving structure most importantly associated with a historic person or event; or (c) A birthplace or grave of a historical figure of outstanding importance if there is no appropriate site or building directly associated with his productive life. (d) A cemetery which derives its primary significance from graves of persons of transcendent importance, from age, from distinctive design features, or from association with historic events; or (e) A reconstructed building when accurately executed in a suitable environment and presented in a dignified manner as part of a restoration master plan, and when no other building or structure with the same association has survived; or (f) A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own exceptional significance; or (g) A property achieving significance within the past 50 years if it is of exceptional importance. This exception is described further in NPS ``How To'' 2, entitled ``How to Evaluate and Nominate Potential National Register Properties That Have Achieved Significance Within the Last 50 Years'' which is available from the National Register of Historic Places Division, National Park Service, United States Department of the Interior, Washington, D.C. 20240.
Resolution of Disputes
Dispute Resolution. Where there is a disagreement regarding the identification or eligibility of a property, and after attempting in good faith to resolve the issue the Applicant and the SHPO/THPO continue to disagree, the Applicant or the SHPO/THPO may submit the issue to the Commission. The Commission shall handle such submissions in accordance with 36 C.F.R. § 800.4(c)(2).
36 C.F.R. § 800.4(c)(2).
(2) Determine whether a property is eligible. If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes. If the agency official determines the criteria are not met and the SHPO/THPO agrees, the property shall be considered not eligible. If the agency official and the SHPO/THPO do not agree, or if the Council or the Secretary so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to a property off tribal lands does not agree, it may ask the Council to request the agency official to obtain a determination of eligibility.
Assessment of Effects
E. Assessment of Effects (1) Applicants shall assess effects of the Undertaking on Historic Properties using the Criteria of Adverse Effect (36 C.F.R. §800.5(a)(1)). (2) In determining whether Historic Properties in the APE may be adversely affected by the Undertaking, the Applicant should consider factors such as the topography, vegetation, known presence of Historic Properties, and existing land use. (3) An Undertaking will have a visual adverse effect on a Historic Property if the visual effect from the Facility will noticeably diminish the integrity of one or more of the characteristics qualifying the property for inclusion in or eligibility for the National Register. Construction of a Facility will not cause a visual adverse effect except where visual setting or visual elements are character-defining features of eligibility of a Historic Property located within the APE. (4) For collocations not excluded from review by the Collocation Agreement or the Agreement, the assessment of effects will consider only effects from the newly added or modified Facilities and not effects from the existing Tower or Antenna. (5) Assessment pursuant to the Agreement shall be performed by professionals who meet the Secretary of the Interior's Professional Qualification Standards.
Sec. 800.5 Assessment of adverse effects.
(a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public. (1) Criteria of adverse effect. An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property's eligibility for the National Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.
Note: In the event of a conflict between the advice given in this training module and the rules and policies adopted in the NPA, the text of the NPA governs.
Question
Can the SHPO require an applicant to identify potentially eligible properties under the APE for visual effects? The applicant is not required to go beyond the sources specified in the agreement in its identification of properties in the APE for Visual Effects. Except with respect to Indian tribes and NHOs, these sources are limited to publicly available data. Keep in mind, however, that the SHPO may certify sites that are in the process of being nominated and the applicant is obligated to take account of public comment it receives in the course of evaluating a site for a tower. Question
How will an applicant know if a SHPO/THPO has designated areas in which no review is required for visual effect? The Commission expects SHPOs to publish such information on their web sites or in other places. When in doubt about whether or not an area has been designated under this section, contact the SHPO. Question
Does the APE for Direct Effects include trenching for utility lines and roads built to a site? Yes. Question
Can an alternative APE for Visual Effects be larger than the presumed APE set forth in the NPA? Can it be smaller? Where justified by the circumstances of the case, the APE for a particular undertaking may be either larger or smaller than the presumed APE. An alternative APE can be used only by agreement of the applicant and the SHPO/THPO or by the FCC's determination. Question
What will the Commission consider to be a "good faith" effort to resolve issues arising from discussions to determine an alternate APE? The Commission would expect the applicant to have prepared written arguments proposing or countering efforts to designate an alternative APE. Such arguments should include an analysis of circumstances that justify departure from the presumed APE. Question
What is considered "an early stage in the planning process" for purposes of gathering information from Indian tribes and NHOs? Applicants should review and evaluate historical and archaeological information before a project reaches a point beyond which it is difficult to change the location or configuration of the undertaking. The intent of this provision is to insure that data and the views of relevant parties are available to decision makers at the time key decisions are made. The Commission further expects an applicant to be able to demonstrate that it considered such information and views in its decision making process. Question
Are applicants required to use Secretary of Interior Qualified consultants? Applicants are required under the Agreement to use Secretary of Interior Qualified personnel for Identification and Evaluation of Historic Properties within the APEs for Direct Effects and for assessing the effects to eligible properties in the APE for both Direct and Visual Effects. The Agreement suggests but does not require that Applicants use Secretary Qualified personnel for Identification of historic properties within the APE for Visual Effects. Question
What is a Secretary of Interior qualified consultant? Refer to http://www.cr.nps.gov/local-law/arch_stnds_9.htm for what the Secretary considers minimum qualifications for historians and archaeologists who perform Section 106 related research. An individual's qualifications should be relevant to the type of work that he or she is performing on a project. Question
Are applicants required to use professionals with experience in the geographic area of a project? The NPA does not include a specific requirement of experience in the geographic area. However, the SHPO/THPO may afford greater credence to the work of a professional with relevant geographic and Section 106 experience. Question
The SHPO/THPO has identified a property as eligible for the National Register that I think is not eligible. What can I do? You can ask the SHPO or the FCC to request an opinion on the property's eligibility from the Keeper of the National Register, the final authority on eligibility. Question
How do I know if visual setting or visual effects are character-defining features of eligibility? If the property is already listed on the National Register, the nomination will identify the characteristics that made it eligible? While the SHPO or a consulting party may identify additional characteristics of eligibility, an applicant is not obligated to look for characteristics that are not included in the nomination. If the property is not listed on the National Register but is identified in another SHPO/THPO list, the applicant should give deference to the SHPO/THPO's opinion. The Applicant can request that unresolved issues regarding eligibility be appealed to Keeper of the national Register. Question
I am collocating an antenna on an existing tower. Do I need to consider the effect of the tower on National Register sites? No. In case of a collocation that is not excluded from review, the Section 106 review needs to consider only new effects from the collocation. Question
What do I do if a SHPO does not keep all of the types of records listed in the NPA? The applicant is required only to consult records that are available at the SHPO/THPO office or in publicly available sources identified by the SHPO/THPO. If such records do not exist, they do not have to be consulted. Question
What constitutes "a high probability" of the presence of intact historic properties for purposes of requesting an archeological field study? While each case must be evaluated on it own merits, evidence that supports a high probability of the presence of intact archaeological properties may include, for example: ( 1) historic documents that describe the presence of archeological features, (2) publicly available survey records that contain reference to the site, or (3) physical evidence that such a site is present. In addition, the FCC will ordinarily afford deference to an explanation of high probability rendered by a tribal leader or historic preservation official based on tribal tradition or cultural knowledge. Question
What does the FCC consider to be evidence of a "good faith" attempt to resolve identification and eligibility issues? The FCC, at a minimum, expects to be satisfied that the issues have been analyzed and discussed based on exchanges of positions set forth in the record.